EN BANC
Agenda of
Item No. 14
G.R. No. 179652 - PEOPLES
BROADCASTING SERVICE (BOMBO RADYO PHILS., INC.) -versus- THE SECRETARY OF THE
DEPARTMENT OF LABOR AND EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII, AND
JANDELEON JUEZAN.
Promulgated:
March 6, 2012
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CONCURRING OPINION
(in the Result)
BRION, J.:
I concur in the
result in affirming with modification the Courts Decision of
Background
The case arose when the DOLE Regional Office No. VII
conducted an inspection of Bombo Radyos premises in response to Juezans money
claims against the broadcasting company, resulting in an order for Bombo Radyo
to rectify/restitute the labor standards violations discovered during the
inspection. Bombo Radyo failed to make any rectification or restitution,
prompting the DOLE to conduct a summary investigation. Bombo Radyo reiterated
its position, made during the inspection, that Juezan was not its employee.
Both parties submitted evidence to support their respective positions.
DOLE Director Rodolfo M. Sabulao found Juezan to be an
employee of Bombo Radyo. Consequently, Director Sabulao ordered Bombo Radyo to
pay Juezan P203,726.30 representing his demanded money claims. Bombo
Radyo moved for reconsideration and submitted additional evidence, but Director
Sabulao denied the motion. Bombo Radyo then appealed to the DOLE Secretary,
insisting that Juezan was not its employee as he was a drama talent hired on a
per drama basis. The Acting DOLE Secretary dismissed the appeal for
non-perfection due to Bombo Radyos failure to put a cash or surety bond, as
required by Article 128(b) of the Labor Code.
Bombo Radyo went to the Court of Appeals (CA) through a petition for certiorari under Rule 65 of the Rules of
Court. The CA dismissed the petition for lack of merit. Bombo Radyo then sought
relief from this Court, likewise through a Rule 65 petition, contending that
the CA committed grave abuse of discretion in dismissing the petition. It
justified its recourse to a petition for certiorari
instead of a Rule 45 appeal by claiming that there was no appeal or any plain
and adequate remedy available to it in the ordinary course of law.
On
The Dissent
The May 8, 2009 Court Decision was not unanimous. I wrote a
Dissent and was joined by Justice Conchita Carpio Morales. I took strong
exception to the Courts Decision for:
1. taking
cognizance of Bombo Radyos Rule 65 petition for certiorari despite the fact that a Rule 45 appeal (petition for
review on certiorari) was available
to the company and would have been the proper recourse since errors of law
against the CA were raised;
2. allowing a
Deed of Assignment of Bank Deposits as a substitute for a cash or surety bond in
perfecting an appeal to the Labor Secretary, in violation of Article 128(b) of
the Labor Code which requires only a
cash or surety bond;
3. re-examining
the evidence and finding that there was no employer-employee relationship
between Juezan and Bombo Radyo, thereby reversing the DOLE Regional Directors
findings which had already lapsed into finality in view of the non-perfection
of the appeal;
4. holding that while the Regional Director and the DOLE
Secretary may preliminarily determine the existence of an employer-employee
relationship in a labor standards case, they can be divested of jurisdiction
over the issue by a mere prima facie
showing of an absence of an employer-employee relationship.
The Public Attorneys Office (PAO) moved, with leave of court, to clarify the Decision on the
question of when the visitorial and enforcement power of the DOLE can be
considered co-extensive or not co-extensive with the power to determine the
existence of an employer-employee relationship. The DOLE, in its Comment, also
sought to clarify the extent of its visitorial and enforcement power under the
Labor Code.
The Court, treating the Motion for Clarification as a
Second Motion for Reconsideration, granted the motion and reinstated the
petition.[1]
The Courts Ruling
In a reversal of position, the present Resolution now recognizes that the
determination of the existence of an employer-employee relationship by the
DOLE, in the exercise of its visitorial and enforcement power under Article
128(b) of the Labor Code, is entitled to full respect and must be fully supported.
It categorically states:
No
limitation in the law was placed upon
the power of the DOLE to determine the existence of an employer-employee
relationship. No procedure was laid down where the DOLE would only make a
preliminary finding, that the power
was primarily held by the NLRC. The law did not
say that the DOLE would first seek the NLRCs determination of the existence of
an employer-employee relationship, or that should the existence of the
employer-employee relationship be disputed, the DOLE would refer the
matter to the NLRC. The DOLE must have the power to determine whether or not an employer-employee
relationship exists, and from there to
decide whether or not to issue
compliance orders in
accordance with Art. 128(b) of the Labor Code, as amended by RA 7730.[2]
The
determination of the existence of an employer-employee relationship by the DOLE
must be respected. The expanded visitorial and enforcement power of the DOLE
granted by RA 7730 would be rendered nugatory if the alleged employer could, by
the simple expedient of disputing the employer-employee relationship, force the
referral of the matter to the NLRC. The Court issued the declaration that at
least a prima facie showing of the
absence of an employer-employee relationship be made to oust the DOLE of
jurisdiction. But it is precisely the DOLE that will be faced with that
evidence, and it is the DOLE that will weigh it, to see if the same does successfully
refute the existence of an employer-employee relationship.[3]
This
is not to say that
the determination by the DOLE is beyond question or review.
Suffice it to
say, there are judicial
remedies such as a petition for certiorari
under Rule 65 that may be availed of, should a party wish to dispute the
findings of the DOLE.[4]
(underscoring ours)
In short, the Court
now recognizes that the DOLE has the full power to determine the existence of
an employer-employee relationship in cases brought to it under Article 128(b)
of the Labor Code. This power is parallel and not subordinate to that of the
NLRC.
Our present
ruling on the authority of the DOLE with respect to Article 128(b) of the Labor
Code is, to my mind, a very positive development that cannot but benefit our
working masses, the vast majority of whom are not organized and, therefore,
outside the protective mantle of collective bargaining.[5]
It should be welcome to the DOLE, too, as it will greatly
boost its visitorial and enforcement
power, and serve as an invaluable tool in its quest to ensure that workers
enjoy minimum terms and conditions of employment. The DOLEs labor inspection
program can now proceed without being sidetracked by unscrupulous employers who
could, as the Resolution acknowledges, render nugatory the expanded visitorial
and enforcement power of the DOLE granted by RA 7730 xxxx by the simple
expedient of disputing the employer-employee relationship [and] force the
referral of the matter to the NLRC.[6]
But our Resolution does not fully go the DOLEs way. The Court, at the same time, confirms its
previous finding that no employer-employee relationship exists between Juezan
and Bombo Radyo based on the evidence presented,[7]
and that a Deed of Assignment of Bank Deposits can be a substitute for a cash
or surety bond in perfecting an appeal to the Labor Secretary.
I continue to entertain strong reservations against the
validity of these rulings, particularly the ruling on the Courts acceptance of
a Deed of Assignment of Bank Deposits to perfect an appeal to the Labor
Secretary; this mode directly contravenes
the express terms of Article 128(b) of the Labor Code which requires only a cash or surety bond. I do hope that the Court will consider this
ruling an isolated one applicable only to the strict facts obtaining in the
present case as this is a step backward in the DOLEs bid for an orderly
and efficient delivery of labor justice.
In light of
these reservations, I cannot fully concur with the present Resolution and must
only concur in the result.
ARTURO D. BRION
Associate Justice